Appeal
from Circuit Court, Montgomery County; Leon McCord, Judge.
Action
by the Corn Products Company against Dreyfus Bros. on the
common counts. Judgment for the plaintiff, and the defendants
appeal. Affirmed.
In an
action by a corn products company for the purchase price of
glucose sold, a plea setting up a violation of the state
statutes prohibiting pools, monopolies, trusts, or
combinations in restraint of trade held properly sustained
where they did not aver that the combination was formed
carried on, or maintained within the state, or that the
transactions out of which plaintiff's cause of action
arose occurred in the state.
The
following are the pleas referred to in the opinion:
(3c) That prior to the institution of this suit the demand
sued upon was in dispute between the plaintiff and
defendants, and defendants, before suit brought, paid to the
plaintiff the sum of $313.85, under the following
circumstances, namely:
Defendants, having received from the plaintiff during the
month of December, 1908, a request that defendants furnish it
a statement of all glucose purchased by defendants from
plaintiff during the year 1908, wrote a letter to the
plaintiff, to wit, December 31, 1908, inclosing a statement
of account, which letter and statement are as follows:
"12/31/1908.
"Corn Products Refining Co., Chicago, Ill.--Gentlemen
Agreeable with your request that we furnish you by Jany
1st-09 with a statement of glucose purchased of you during
the year 1908, we beg to hand you herewith a detailed
statement of such purchases and have charged your account
with $587.75 amount due us on said purchases.
"Very truly,
"D.R
D/J. Dreyfus Bros."
Glucose
Bought of the Corn Products Refining Co., from 1/7 to
11/21/08.
1"7
60 bbls. 39810
2"17
60 bbls. 39887
4"2
60 bbls. 39937
5"19
57 bbls. 38169
6"26
60 bbls. 40439
8"25
61 bbls. 40045
9"23
50 bbls. 33910
10"8
53 bbls. 35508
10"31
53 bbls. 35672
11"21
53 bbls. 35122
------
378497
@ 15¢ 567.75
And on the 2d day of February, 1909, the defendants wrote
plaintiff a letter inclosing their check on the First
National Bank of Montgomery, Ala., dated February 2, 1909, in
favor of the plaintiff for the sum of $313.85, which letter
and check are as follows:
"2/2/1909.
"Corn Products and Refining Co., Chicago,
Ill.--Gentlemen: In remitting to cover your invoices of the
1/19 and 1/21 we have deducted 15¢ cwt. overcharge on your
invoice of the 1/21 and $567.75 amount due us on the
profit-sharing plan on your purchases of you during 1908. In
making the above-stated deductions we of course waive our
rights to any further participation in your profit-sharing
plan. While we appreciate the fact that you have many
thousands of larger customers than ourselves, we feel safe in
saying that you have not a single account on your books that
has been more loyal to you than ourselves and for which
loyalty we feel that very little appreciation has been shown.
We have at times favored you with orders for glucose at
prices anywhere from 20 to 50 points above competitors'
prices, anticipating, of course, that the refund to us under
your profit-sharing plan would absorb at least the greater
portion of such differences, and then to receive only 15¢
cwt. rebate on our purchases of glucose from you during the
year 1908 has placed us at a disadvantage with many of our
strongest competitors which we can no longer stand for and
cause us on our purchases of glucose of you during 1908 a
loss much greater than the amount due us by you
on our 1908 purchases of glucose amounts to. Save in one or
two instances, our business relations with you have been of a
very pleasant nature, and, all things being equal, we shall
be glad to continue to favor you with the bulk of our glucose
business and which we think is all that you can possibly ask
or expect of us.
"Very truly, Dreyfus Bros."
"No.
17229. Dreyfus Bros.
"Montgomery,
Ala., Feb. 2, 1909.
"Pay to the order of Corn Prod. Refn'g Co., three
hundred thirteen 85/100 dollars. $313.85 "First National
Bank, Montgomery, Ala.
"[Signed]
Dreyfus Bros."
Indorsements:
"Pay to the Merchants' Loan & Trust Company, 25
Chicago, Ill., or order 25.
"Corn
Products Refining Co.
"A.E. George.
"Pay Merchants' National Bank, Baltimore, Md. All
prior indorsements guaranteed. The Merchants' Loan &
Trust Co., of Chicago, J.G. Orchard, Cashier."
On, to wit, the 4th day of February, 1909, the plaintiff
addressed and mailed a letter to the defendants returning the
aforesaid check, which letter is as follows, to wit:
"Chicago
February 4, 1909.
"Dreyfus Bros., Montgomery, Ala.--Gentlemen: We beg
herewith to return your check No. 17229 drawn to this
company's order for $313.85 inclosed in your letter of
February 2d and purporting to settle in full our invoices of
January 19th and 21st amounting to $937.67.
"We inclose herewith a copy of our circular letter sent
you under date of December 9th which embodies the terms and
conditions upon which our customers become entitled to share
in profits and beg to advise you that, when compliance with
said terms is shown, remittance will be made to you in
accordance with said terms.
"In the meantime we respectfully call your attention to
the fact that one of the conditions upon which our customers
become entitled to share in profits is that all invoices
covering shipments are paid for in full in cash, and we
express the hope that you will not through ill advice adopt a
course that will deprive you of your rights to share in
profits. Respectfully yours, Corn Products Refining Company,
[Signed] E.E. Van Sickle, Manager Glucose Department.
E.E.V.S.M.M. Enc."
On, to wit, the 6th day of February, 1909, the defendants
addressed and mailed a letter to the plaintiff, returning to
the plaintiff, the aforesaid check, which letter is as
follows, to wit:
"2/6/1909.
"Corn Products Refining Co., Chicago, Ill.--Gentlemen:
Your favor of the 4th to hand and contents of same noted. We
again beg to return herewith our check sent you, less amount
due us as per our ledger charge to your account, and which
settlement, if not satisfactory to yourselves, you are at
liberty to take any legal action that you might see fit to
secure payment of any further amount for which you might feel
that you have any claim on us, and we think that we are fully
prepared to defend any such action. We acted against our
better judgment in confining our purchases of glucose for the
past 2 1/2 years exclusively to your corporation, and the big
financial loss that we have suffered through doing so causes
us to see now much plainer than we ever did before the
serious mistake that we made and how little appreciation was
shown for the patronage accorded you.
"Very respectfully,
"D.R.D./g.
Dreyfus Bros."
On, to wit, March 20, 1909, Mr. Fred S. Ball, an attorney of
Montgomery, Ala., addressed and mailed a letter on this
subject to the defendants, which letter is as follows:
"Montgomery,
Ala., March 20, 1909.
"Dreyfus Bros., City--Gentlemen: I have received from
Corn Products Refining Company an account against you for
$939.67, with instructions to file suit for the collection
thereof immediately, which I am doing. On February 2, 1909,
you sent to that company your check for $313.85 in settlement
of your account, after deducting certain items referred to on
the statement which accompanied the check, and which you
probably meant in full settlement of your account. On
February 4th that check was returned to you with a letter,
which you doubtless have. On February 6th you again sent that
check to the company with the statement that it is in full of
the account. On February 8th the company wrote you
acknowledging receipt of the check and stating that it had
credited your account with amount thereof, leaving a balance
due by you of $625.82, and stating that payment of that
balance must be made by March 1st, or the account would be
placed in the hands of its attorney for collection.
"As you are aware, the check has not been cashed. Upon
receipt of this letter, let me know whether you desire this
check to be used as a payment on whatever you may owe the
company; otherwise I shall understand that you desire it to
be accepted as a payment on account.
"Yours truly, [Signed] Fred S. Ball."
On, to wit, March 22, 1909, defendants addressed and mailed a
letter to the said Ball on this subject, which letter is as
follows: to wit:
"3/22/1909.
"Mr. Fred S. Ball, Attorney at Law, City--Dear Sir: We
are in receipt of your letter of date of March 20th, advising
that you had received from the Corn Products Refining Co. an
account against us for $939.67 with instructions to file suit
immediately for the collection thereof and which you had done
and which action taken is perfectly satisfactory to us. With
the proper credits to which we are entitled to on the books
of the Corn Products Refining Company given us, we are not
due the aforesaid concern the sum of 1 cent.
"We are not, as you seem inclined to think, aware of the
fact that the check sent the Corn Products Company to balance
our account with them has never been cashed as the time that
has elapsed between February 6th, the date of which our check
was returned to the Corn Products Company, and the present is
sufficient for the check to have been collected several times
over,
and we had no reason to know otherwise than that our check
had been
...
